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By Lieutenant Martin A. Harry,
Judge Advocate General Corps,
U.S. Naval Reserve
Satisfied that this craft was seaworthy and •ts sail was adequate for propulsion, the commanding officer of the Dubuque left food and water and sailed off, thinking he’d done his part. But international law, Navy Regulations, the customs and traditions of the sea—and humanity—say otherwise.
The USS Dubuque (LPD-8) and the USNS Kilauea (AE-26) were steaming in the South China Sea when, on 9 June 1988 at 0923, Vietnamese refugees Waving a white flag were spotted.1 Following instructions from the Dubuque, the Kilauea remained about two miles from the refugee boat. The Dubuque’s operations otticer showed the commanding officer, Captain Alexander G. Balian, directives applicable to the situation." Alter reviewing them with Lieutenant Commander Stan Halter, the executive officer, Captain Balian concluded that the refugee boat’s seaworthiness would determine whether the Dubuque was required to embark the refugees.
As the Dubuque maneuvered closer to the boat, several refugees dove into the water and began swimming toward the ship. At Captain Balian’s direction, the refugees were warned not to get close to the ship. At 0930 the ship’s motor whaleboat was readied and at 0943 it was lowered about 500 yards from the refugee boat. Captain Balian told the XO to take six crew members and circle the refugee boat to determine what assistance the refugees needed. Commander Halter carried a radio and maintained direct
communication with Captain Balian.
Minutes after the motor whaleboat was in the water, the body of a dead refugee floated past the starboard side of the ship. Captain Balian saw the body. When three of the swimming refugees approached the ship on the port side, crew members threw life rings to them. Captain Balian, upset by this, asked who had authorized this action. From that point on, no one tossed any more life rings to the the refugees to be emaciated, poorly clothed, dehydrated, and obviously in need of medical care. Among the refugees were small children. One woman held an infant with outstretched arms for them to see.
The XO directed that the refugees be told that they would not be rescued, but food and water would be provided. But the interpreter, without authorization, also told the refugees that another ship would rescue them.
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refugees in the water. Three refugees began climbing the monkey lines that hung from the boat davit. But on Captain Balian’s orders, crew members shook the refugees from the lines, causing them to fall back into the water from a height of three to ten feet.
At 0950, the Dubuque's motor whaleboat began circling the refugee boat. A sailor, a Vietnamese national, acted as the interpreter. The refugees told him that they had been at sea between 10 and 14 days, the previous 7 without fresh water; that an estimated 20 people had died; and that the boat was taking on water. It looked as if about 50 to 70 refugees were on the boat deck and there were others below. Captain Balian was informed of these circumstances. Although subsequent statements by the refugees indicated the contrary, the Navy interpreter was apparently told “no” when he asked whether medical attention was needed. This too was relayed to Captain Balian.
The XO concluded that the refugee boat “appeared seaworthy” at 0952. He made this assessment on the basis of his limited observations. He thought the boat’s small sail could provide adequate propulsion. Each of the other six crew members of the motor whaleboat personally disagreed with the XO’s determination. But the XO did not ask the motor whaleboat crew for their observations or opinions. The crew’s observations led them to believe that the sail was incapable of propelling the boat. They found
At 1007, the motor whaleboat returned to the Dubuque. The embarked Marine Air Ground Task Force 3-88 provided six rubber boats in the well-deck for the transfer of food and water. The supply officer delivered to the boats food that was already being prepared for lunch. All food was put in plastic bags and placed in boxes. Since no one advised the supply officer as to how much food and water were needed, he estimated, based on a refugee population of 50 to 60, that the food loaded onto the boats would last for four days. Both clothing and medical personnel were made available to the XO, but were not taken.
The Marines stopped their boats about 20 feet from the refugee boat and swam the boxes over on wooden pallets. A refugee told the Marines in English that medical supplies were needed and that 20 refugees had already died. One or two refugees were lying on the deck, unresponsive to the Marines. A rubber boat moved next to the refugee boat and the Marines handed boxes of food directly to the Vietnamese, who ate it as it was delivered, without cups, bowls, or utensils. Some of the food leaked and at least two of the ten bags of water burst.
The navigational assistance offered consisted of providing the refugees with a chart that indicated their current position and had instructions to “go in the direction the sun rises” written in Vietnamese. At 1100, the rubber boats returned to the Dubuque. Nine minutes later, the Dubuque and the Kiluaea left the refugees. The refugee
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boat was 280 nautical miles from the nearest land and 390 nautical miles from where the northeast surface flow was expected to taken them, at a speed of one knot.
Eighteen days later, on 27 June, a Filipino fisherman rescued the refugees north of Subic Bay in Balinao. The boat’s course had followed the predicted surface direction at 0.9 knots. Fifty-two refugees were alive. Based on photographs, it is estimated that 83 refugees were alive when the boat encountered the Dubuque.
The Law Governing Encounters with Refugees: Captain Balian based his decision not to embark the refugees on his interpretation of specific directives pertaining to refugee encounters. But the legal duty owed to refugees on the high seas is more generally governed by rules of international law, both customary and conventional, and Navy Regulations made according to these rules.
Specifically which rules are to be applied when refugees are encountered on the high seas depends on the circumstances. For example, persons in distress on the high seas and refugees in international waters seeking political asylum involve different legal, and potentially significant political, considerations. In the case of the Dubuque, there was evidently no express request for political asylum and no apparent hostile pursuit presenting an imminent threat to the safety of the refugees. Therefore the rules governing asylum and temporary refuge were not applicable and the duty the Dubuque owed the Vietnamese refugees was the affirmative duty owed to persons in distress at sea.1
Article 12 of the Convention on the High Seas, ratified
Article 98 of the United Nations Convention on the Law of the Sea, captioned “Duty to render assistance,” contains the same obligatory language.4 Although not a party to the treaty, the United States regards this article, along with most of the articles of the 1982 United Nations Convention, as representing a codification ot customary international law.5
Following the requirements of international law, a Navy regulation essentially repeats the language contained in these treaties. The duty, however, is ascribed to “the commanding officer or the senior officer present as appropriate.”6 The unclassified portions of the directives that Captain Balian reviewed advise all Seventh Fleet units “to be vigilant to the possibility of encountering refugees and, if encountered, extend humanitarian assistance as required.” It is also stated that
“[t]he natural inclination of mariners, the customs and traditions of the sea [Article 0925, Navy Regulations] require U.S. Navy ships to render aid to vessels and persons found in distress. In those instances wherein relief of persons in life endangering circumstances cannot be accomplished by repairs to boats, reprovisioning or navigational assistance, rescue is normally by means of embarkations.”
When the Dubuque discovered the refugee boat in the South China Sea, Captain Balian recognized he had a duty to stop and assess whether the refugees needed any assistance. The assistance the Dubuque gave was welcomed,
by the United States, states that the master of a ship sailing under a state’s flag is required
“in so far as he can do so without serious danger to the ship, the crew or the passengers, (a) To render assistance to any person found at sea in danger of being lost; [and] (b) To proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, in so far as such action may reasonably be expected of him.”
As these swimmers neared the Dubuque, sailors threw life rings to them—until the captain asked who authorized the action. No more life rings were thrown to the refugees, and those who tried to climb on board were shaken off the boat davit’s monkey lines, back into the water. From the vantage point of the motor whaleboat the Dubuque's executive inspected the refugee’s vessel and concluded that it appeared seaworthy.
Unhappy with the Navy’s disciplinary action, Captain Italian took his case to the public, on the television show “60 Minutes.” He reiterated his belief that the boat was seaworthy, as reported by his executive officer, and that the refugees were in no danger, according to an interpreter. The refugees, he added, were grateful for the assistance they received.
but, whether judged by standards dictated by law or humanity, was wholly insufficient under the circumstances.
It is uncertain if the decision not to embark the refugees resulted from a misinterpretation of the legal obligation to refugees on the high seas, or from a failure to obtain all relevant facts and, consequently, to appreciate fully the refugees’ peril. The Navy’s investigation showed that Captain Balian had previous experience with refugees and realized that a refugee encounter was possible. Why there was not greater planning with regard to this contingency is questionable. Nevertheless, at the time of the incident, the decision not to embark was based on advice and information that proved inadequate.
Rather than emphasizing the safety of the refugees, Captain Balian focused on the seaworthiness of the refugee boat. Seaworthiness, of course, must be considered as merely a first criterion. Other considerations may obviously require rescue even where the boat is seaworthy. The survivability of the refugees is paramount, and all factors that bear on this cannot be disregarded simply because the boat is determined to be “seaworthy.”
Aside from not embarking the refugees, the Dubuque provided limited assistance. No medically trained crew member was able to observe the refugees to assess their medical needs. No clothing was provided, although it was obviously needed. The navigational assistance was minimal and the food and water provided would not last for the duration of the refugees’ voyage. In addition, assistance was specifically withheld from swimmers in the water, one of whom reportedly drowned. The ship’s command subordinated the perceived needs of the persons in distress to operational commitments.
The decision not to embark the refugees had ramifications for the crew of the Dubuque as well. The investigation revealed that most of the crew expected to embark the refugees. When this did not occur, they became disillusioned. The CO’s approach to the entire event caused morale to suffer badly. Counseling sessions were held because some members were troubled, even outraged, by the abandonment of the refugees on the high seas.
The Dubuque incident is an exceptional case that contrasts sharply with previous refugee encounters by U.S- Navy vessels.7 It demonstrates the importance of reconciling military missions with legal and political constraints, and the consequences of failing to do so. Not only must Navy rules and policy reflect these considerations, but those in positions of authority must also be sensitive to these considerations. Accountability is essential if international rules are to remain effective.
Before his court-martial, on 13 August 1988, Captain Balian was relieved of his command by Commander Naval Surface Force U.S. Pacific Fleet. The general court-martial found Captain Balian guilty of five acts of dereliction of duty, concluding that he had a duty to embark the refugees or cause them to be rescued. It also found that the XO’s inspection of the boat was inadequate. The convening authority in this case, Commander U.S. Naval Forces Philippines, has approved the record of this trial. Captain Balian was sentenced by court members to be reprimanded.
'See Capt. J. F. Neese, USN, investigative report of 9 August 1988 (Investigation to Inquire into the Circumstances Surrounding the Assistance Provided by USS Dubuque [LPD-8] to Vietnamese Refugees Encountered in the South China Sea on 9 June 1988).
2Tab G to Appendix 6 to Annex C to Commander-in-Chief Pacific Fleet Operations Order 201 (Southeast Asia Refugee Concept of Operations); Tab D to Appendix 6 to Annex C to Commander Third Fleet/Commander Seventh Fleet Operations Order 201 (Embarkation and Debarkation of Refugees on the High Seas). 3SecNavInst 5710.22 requires that refugees requesting asylum on the high seas be embarked.
4Done 10 December 1982, United Nations Document A/Conf.62/122 (1982), reprinted in 21 I.L.M. 1261.
5See President Ronald Reagan’s policy statement of 10 March 1983, State Department Bull.
6Article 0925, U.S. Navy Regulations, 1972.
7See “United States Navy Practices and Policies Regarding Individuals Encountered on the High Seas Fleeing Southeast Asia by Boat,” Hearings before the Subcommittee on Immigration, Refugees, and International Law, of the House Committee on the Judiciary, 101st Congress 1st Session, 28 June 1989. Statement of RAdm. J. E. Taylor, USN, “Since 1983, 1,288 refugees, including 155 to date in 1989, have been embarked or assisted by the Navy.” On 13 August 1989, the Dubuque again encountered Vietnamese refugees, whose 35-foot boat was deemed unseaworthy. The Dubuque embarked the refugees.
Lieutenant Harry, who graduated from Southern Illinois University Law School in 1988, was First assigned to the Office of the Judge Advocate General. In February he reported to the Navy Legal Services Detachment at the Naval Training Center in Orlando, Florida.